Madras High Court
Gilgal Gospel Mission vs R.S.Gopalan on 21 January, 2021
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
Gilgal Gospel Mission,
Rep by its President & Secretary,
No.22, College Road,
I.D.S.Nagar, Kovilpathagai,
Chennai 62. ..Appellant
Vs.
1.R.S.Gopalan
2.R.Krishnan
3.T.S.Vishnu Priya
4.The Tahsildar,
Ambattur Taluk,
Ambattur, Chennai 53. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43(1)(c) of
C.P.C., against the decree and judgment passed on 28.11.2016 in
A.S.No.41 of 2014 on the file of the District Judge, Thiruvallur which is
the appeal filed against the decree and judgment passed on 24.06.2011
in O.S.No.36 of 2006 on the file of the Sub Ordinate Judge,
Poonamallee.
1/7
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
For Appellant : Mr.R.Rajesh Kumar
For Respondents : Mr.M.S.Jaganathan G.A (CS)
JUDGMENT
The judgment and decree dated 28.11.2016 passed in A.S.No.41
of 2014, is under challenge in the present civil miscellaneous appeal.
2. The suit was instituted by the respondents 1 to 3 herein for
declaration and mandatory injunction. The suit was decreed in favour of
the respondents 1 to 3 herein. The defendants preferred A.S.No.41 of
2014 and the Appellate Court remanded the matter back to the Trial
Court to decide the matter afresh by framing additional issues, by an
order dated 28.11.2016. Challenging the said judgment, the present
appeal is filed.
3. The learned counsel for the appellant mainly contended that the
first Appellate Court itself has got powers to frame additional issues, if
necessary, by accepting the additional documents and examine the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
witnesses, if required and decide the appeal suit on merits by affording
opportunity to the parties concerned. Contrarily, the first Appellate
Court unnecessarily remanded the matter back to the Trial Court which
would cause prejudice to the interest of the parties. The suit was
instituted in the year 2006 and the first appeal was filed in the year 2014
and now, even after a lapse of 14 years, the issues are still pending and
not reached the finality.
4. This Court is of the considered opinion that under Section 107
of C.P.C., the appellate Court is empowered to receive additional
documents and frame issues and decide the matters finally. Order 41
Rule 23 and 23(A) shall be invoked by the Appellate Court only when
Rule 24 cannot be invoked. If Rule 24 of Order 41 can be invoked by
the first Appellate Court by deciding the matter finally, it is not
preferable to invoke Rule 23 and 23(A) of Order 41.
5. In all circumstances, the first appellate Court is expected to
decide the matter finally by adjudicating the issues on merits and only
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
on exceptional circumstances, an order of remand may be passed. In the
event of remand, the litigations are not only prolonged, the same would
cause prejudice to the interest of the parties. The re-adjudication of the
same issues before the Trial Court would frustrate the minds of the
litigants. Therefore, the first Appellate Court has to look into the
evidence and the documents which are adjudicated by the first Appellate
Court and if the documents and evidence are adjudicated, then, the first
appellate Court shall decide the matter finally without remanding the
matter back to the Trial Court.
6. The Appellate Court is well within its powers to accept the
additional documents and examine the witnesses and appoint
Commissioner, if necessary, to survey the property etc. When all such
powers are vested with the first Appellate Court, there is no reason to
remand the matter back to the Trial Court for framing additional issues
or to reconsider the documents. Appreciation of documents by the Trial
Court if found to be wrong, the appellate Court can reappreciate the
documents and evidences.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
7. This being the wider scope provided under C.P.C., for the
Appellate Court to decide the matter finally, the Appellate Courts need
not remand the matter for the purpose of framing of additional issues
which would certainly create longevity to the litigations.
8. This Court is of the considered opinion that the present appeal
suit is to be decided on merits, if necessary, by recasting the issues or by
framing additional issues or by accepting the additional documents or by
examining the witnesses.
9. Accordingly, the judgment and decree dated 28.11.2016 passed
in A.S.No.41 of 2014 is set aside and C.M.A.No.383 of 2017 stands
allowed. The first Appellate Court is directed to dispose of the appeal
suit on merits and in accordance with law by affording opportunity to all
the parties concerned by framing additional issues or by recasting the
issues or by accepting additional documents or by examining witnesses
etc. The said exercise is directed to be done within a period of six
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
months from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
10. The parties to the suit are directed to cooperate for the earlier
disposal of the suit. The Trial Court should decline unnecessary
adjournments on flimsy grounds if sought for by the parties to the suit.
The adjournments sought are to be granted only on genuine grounds and
by recording reasons. Thus, the Trial Court is expected to proceed with
the case without granting any unnecessary adjournments either at the
instance of the parties or by the Courts.
21.01.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
gsk
To
1.The District Judge, Thiruvallur
2.The Sub Ordinate Judge, Poonamallee
3.The Tahsildar,
Ambattur Taluk,
Ambattur, Chennai 53.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
S.M.SUBRAMANIAM, J.
gsk
C.M.A.No.383 of 2017 and
C.M.P.No.2738 of 2017
21.01.2021
https://www.mhc.tn.gov.in/judis/
